In memory of Louis Henkin, who died last month in New York, I recently took to the archives, to see whether any of his work had found its way into the NYU Journal of International Law and Politics. While Henkin’s byline never appeared in any of JILP’s forty-two volumes, his work nevertheless left a mark on our pages.
In the seventh volume of JILP, a review of Henkin’s Foreign Affairs and the Constitution recognized the supreme importance of this work to the field of U.S. foreign relations law. (7 N.Y.U. J. Int’l L. & Pol. 203.) Henkin, Stanley Futterman wrote, spoke with “the natural modesty and courage of the true teacher.” But our reviewer soon takes a more critical stance in light of Henkin’s discussion of Vietnam.In the review, one can feel the renewed urgency of this field of study, in light of the ongoing trauma of the Vietnam War. The review sometimes laments Henkin’s relatively neutral tone, wishing that Henkin would do more than assess the bare legality of certain assertions of presidential power, and that he would also discuss the “constitutional propriety” of legislative action. Consider this paragraph:
President Johnson did have the Tonkin Gulf Resolution, of course, as a prop for his later decision [to commit troops]. And its language is borad enough to encompass all that was later done. But is it immaterial that the Resolution was passed more than half a year in advance of the sending of large numbers of combat forces into Vietnam, in the very different context of what was understood to be … naval attacks on American warships on the high seas? So long as the question is only one of technical legal authorization, the answer is probably yes. If the question is whether the President acted properly in not returning to Congress for a deliberate decision … the answer is no. Henkin’s falure to pose the issue of constitutional propriety in regard to Vietnam is no service to future Chief Executives. The consequences of constitutional improprieties may not show up in the courts; but unless the nation is very lucky, as it obviously was not in Vietnam, they will leave an unmistakble imprint of recrimination and mistrust in the body politic.
Foreign Affairs would receive a thorough update in 1997. Also, see this interview with Sarah Cleveland on the continued legacy of Henkin’s in the “age of terror.”
Henkin has also been cited in our journal in at least 110 articles and notes. This number will increase with the publication of our Fall 2010 issue, as two pieces (including my own) make reference to his highly influential work on human rights and state sovereignty.